RAM KRISHAN Vs. RAMESH KUMAR

JUDGEMENT

(1.) This judgment shall dispose of Cr. MP No. 179 of 2013 in Cr. MMO No. 8 of 2012 and Cr. MMO No. 68 of 2012 as common and overlapping questions of law are involved in both the matters. The relevant facts, in brief, are that respondent/complainant Ramesh Kumar filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881, against petitioner/accused Ram Krishan. In the complaint, accused moved an application under Section 311 of the Code of Criminal Procedure, 1973 (for short 'Code') to recall for cross-examination complainant along with original agreement executed probably on 18.08.2010 in respect of apple crop of complainant purchased by accused. This application was dismissed by trial Magistrate on 05.12.2011. The accused filed Cr. MMO No. 8 of 2012 under Article 227 of the Constitution of India read with Section 482 of the Code and assailed order dated 05.12.2011. Cr. MMO No. 8 of 2012 was dismissed on 13.01.2012. The accused has filed Cr. MP No. 179 of 2013 under Article 227 of the Constitution of India read with Section 482 of the Code for recalling order dated 13.01.2012 passed in Cr. MMO No. 8 of 2012.

(2.) After the decision of Cr. MMO No. 8 of 2012, accused moved another application under Section 91 of the Code for summoning agreement in dispute. This application was opposed by the complainant. The trial Court on 27.03.2012 dismissed the application with the observation that the application has been moved on behalf of the accused just to linger on the proceedings and, therefore, the trial Court imposed costs Rs. 500/- to be paid by the accused to the complainant. The order dated 27.03.2012 has been assailed in Cr. MMO No. 68 of 2012.

(3.) I have heard learned counsel for the parties. On behalf of petitioner/complainant, learned Senior Advocate has submitted that on 13.01.2012, true, correct facts were not brought to the notice of this Court which led to dismissal of Cr. MMO No. 8 of 2012 on 13.01.2012. The original agreement or its copy was never with the accused which is clear from the statement of complainant. He has submitted that party should not suffer for the mistake of the counsel or the order of the Court based upon such mistake of the counsel and, therefore, submission has been made for recalling the order dated 13.01.2012. In Cr. MMO No. 68 of 2012, it has been argued by learned Senior Advocate that under Section 91 of the Code, the Court is competent to summon the agreement in question from the complainant in order to determine the real controversy. The Court below has misconstrued and misinterpreted the statement of complainant. The learned Senior Advocate has relied Rafiq and another versus Munshilal and another, 1981 AIR(SC) 1400, Kunjuvarkey versus State of Kerala, 2001 2 AICLR 778, H.R. Shetty and others versus Titas Farnandes, 2003 CrLJ 1383, Trilok Singh versus State of Himachal Pradesh, 2004 CrLJ 3134 , State of Orissa versus Debendra Nath Padhi, 2005 1 SCC 568in support of his submissions.